Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) granted precautionary measures on August 16, 2018, in favor of migrant children who were separated from their families as a result of the implementation of the "Policy of Zero Tolerance" in the United States.

The Commission issued two resolutions. One request was submitted by the National Human Rights Commission of Mexico, the Office of the Ombudsman of Colombia, the Office of the Ombudsman of Ecuador, the Office of the Ombudsman of Guatemala, the Office of the National Human Rights Commissioner of Honduras and the Office of the Human Rights Ombudsman of El Salvador, all of which are National Human Rights Institutions, in favor of children who remain unaccompanied. The other request, regarding five identified families, was presented to the Commission by the Texas Civil Rights Project, the Women's Refugee Commission, the Immigration Clinic of the University of Texas School of Law and Garcia & Garcia Attorneys at Law, P.L.L.C.

In its resolutions, the Commission reiterated that, under the principle of complementarity, the State, through its domestic authorities, is primarily responsible for protecting the human rights of the persons under its jurisdiction; in this sense, the nature of international jurisdiction is “auxiliary” or “complementary,” without replacing it. In the present case, the Commission has followed up the implementation of the Zero Tolerance policy and previously expressed its concerns in a press release. Later, the Commission heard about a subsequent Executive Decree signed on June 20, 2018, which allegedly prevented the continued separation of children from their migrant families. The Commission was also informed that the decision of the U.S. District Court for the Southern District of California of June 26, 2018, had ordered a series of measures to facilitate regular communication between children and their parents and to achieve reunification within specific time frames, the last one expiring only on July 26.

After receiving both requests for precautionary measures, precisely in view of the complementary nature of the inter-American system, the IACHR requested information from the State regarding the results that the previous measures would have had with respect to the risk situation of the persons proposed as beneficiaries. The State submitted its last reply on August 10.

At the time of issuing its resolutions, the Commission noted that even though the State reported having made efforts towards reunifying the 2,551 children initially identified, despite the expiry of the time limits set out in the decision of the U.S. District Court for the Southern District of California, the State did not provide detailed information indicating the specific situation of the proposed beneficiaries and, according to its latest report, 572 separated children would still remain in the custody of the Office of Refugee Relocation. In addition, according to the State's reports of 410 children, the adults accompanying them were already outside the United States.

The Commission notes that the State did not provide detailed information on whether reunification would be effectively planned in the short term, whether there would be a timetable or whether means of contact had been effectively put in place. The State also did not provide information on the particular circumstances of the proposed beneficiaries, their state of health or conditions of detention. According to the information provided, in some cases it may not be possible to achieve such reunification and such children may end up being handed over to a sponsor in the United States.

In view of the above, the Commission concluded that the rights to family life and personal integrity as well as the right to identity of the children proposed as beneficiaries, are, in principle, at risk. The foregoing, taking into account the serious impact of the loss of the link between children and their biological families that could result from their final separation in the absence of precise information on their situation and possibilities for reunification, even in some cases where separate deportation may already have taken place. This, together with the emotional and psychological impact of detention and the uncertainty surrounding the reunification of children, at a crucial time when the family plays an essential role in the formation of their respective personalities and identities.

Accordingly, the Commission requested that the United States (a) Adopt the necessary measures to protect the rights to family life, personal integrity and identity of the proposed beneficiaries. Particularly, assuring that these rights are protected through the reunification of the children with their biological families and in support of the children’s best interests; b) Adopt the necessary measures, while such reunification is carried out, to immediately guarantee an appropriate, free, and regular communication between the beneficiaries and their families, in accordance with their best interests. Moreover, with the aim of protecting their rights, provide medical and psychological assistance, among others that might be necessary such as consular assistance. Also, provide interpreting services when necessary so that the proposed beneficiaries know their rights and have a good understanding of their situation and destination; (c) In case any of the proposed beneficiaries was deported separately from their children, adopt immediately the necessary measures in the framework of international cooperation to guarantee their reunification, taking into account the child’s best interest and the necessary support and care; (d) Suspend any migration procedure that may result in the separation of the children from their parents; and (e) Agree upon the measures to be adopted regarding the proposed beneficiaries and their representatives.

The granting of the precautionary measures and their adoption by the State does not constitute a prejudice to any petition before the Inter-American system alleging violations of the rights protected in the American Declaration and other applicable instruments.

Within the framework of the monitoring of this situation, the Inter-American Commission requested the States of Mexico and of the United States of America to carry out visits to their northern and southern borders respectively, with the objective of monitoring the human rights situation relating to conditions of reception at the border, particularly in light of the principles of family unity and the best interest of the child.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.